Opinion
No. 07-17-00232-CV
10-25-2017
IN THE INTEREST OF N.C.G. AND B.N.G., CHILDREN
On Appeal from the 316th District Court Hutchinson County, Texas
Trial Court No. 42,332, Honorable Curt Brancheau, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant, A.E., appeals the trial court's order terminating her parental rights to her children, N.C.G. and B.N.G. We will affirm.
To protect the children's privacy, we will refer to appellant and the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b).
Factual and Procedural Background
After receiving a referral that A.E. had a drug problem and was threatening suicide, the Department of Family and Protective Services made contact with A.E.'s mother on April 5, 2016, after unsuccessfully attempting to contact A.E. While discussing the referral with A.E.'s mother, A.E. arrived. Upon learning that the Department had opened a case on her, A.E. became angry and threatened to take the children out of school and move them to somewhere where "nobody is ever going to know where they are again." When A.E. then went to the school and withdrew the children, the Department removed the children from A.E.'s possession later that day.
While A.E. denied having a drug problem, she had been to drug rehabilitation programs on two prior occasions. In neither instance did she complete the program. There was evidence that indicated that A.E. was using drugs at the time that the children were removed from her care. Subsequent to the children's removal, A.E. tested positive for methamphetamines and/or amphetamines on May 12, May 24, and November 15, 2016, as well as on April 7, 2017. In addition, A.E. did not submit to drug testing every time it was requested. When she refused to submit to a drug screen in June of 2016, the trial court suspended her visitation with the children until she could test clean. A.E. had not tested clean by the time of trial on May 23, 2017.
In addition to the drug abuse, A.E. exposed the children to multiple incidents of domestic violence. She left B.N.G.'s father because he would hit her. Subsequently, A.E. had many different boyfriends that would live with her on a revolving basis. During this period of time, there was an incident in which A.E. shot one of her boyfriends in the hand with the children present. When B.N.G. tried to hide in the closet in fear, A.E. employed him to pass messages back and forth between her and the boyfriend. Further, the violence did not end after the children were removed. In 2017, police were called to A.E.'s residence because she was kicking out windows in her home following a fight with her boyfriend.
During the pendency of this case, A.E. was given a service plan by the Department. The required services included attending counseling sessions to address the issues that led to the removal of the children, parenting classes, drug and alcohol assessment, anger management, and rational behavior therapy. While it appears that the service plan was not timely ordered by the trial court, the record reflects that A.E.'s caseworker reviewed the plan with A.E. and they discussed each of the services that would be required. A.E. acknowledged that she understood that she was being asked to perform these services, but she stated that she would not complete the services because she did not believe that the children were removed for a valid reason. Consistent with her statement, A.E. did not complete any of the required services identified in her service plan.
A.E. also failed to obtain stability in her life during the pendency of the case. She was incarcerated at the time of the final hearing and would remain in jail for twelve days after the hearing. In addition, A.E. told her caseworker that she had been incarcerated right before each of the prior hearings held in this case.
Under the trial court's temporary order, the children were placed with A.E.'s parents. The children had lived with their grandparents off and on for five or six years prior to the Department's removal. The children were thriving in this placement. In the year during which the children were placed with their maternal grandparents, they had become more talkative, comfortable, and were doing better in school. The maternal grandparents have expressed a desire to adopt the children.
After hearing the evidence, the trial court terminated A.E.'s parental rights to the children finding that she had violated Texas Family Code section 161.001(a)(1)(D), (E), and (O), and that termination would be in the children's best interest. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016). It is from this order that A.E. appeals. By her appeal, A.E. challenges the legal and factual sufficiency of the evidence supporting the trial court's termination of her parental rights to the children.
Further reference to provisions of the Texas Family Code will be by reference to "section ___" or "§ ___."
Standard of Review
A parent's right to "the companionship, care, custody, and management" of her children is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). As such, the evidence must be clear and convincing to support an involuntary termination of parental rights. Id. We must strictly scrutinize termination proceedings. Id. at 20-21.
Under Texas law, to terminate parental rights, it must be proven by clear and convincing evidence that a parent has committed one or more of the acts and/or omissions identified in section 161.001(b)(1), and that termination is in the child's best interest. See § 161.001(b). Clear and convincing evidence is the degree of proof necessary to produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. § 101.007 (West 2014); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). Only one statutory predicate ground is required to support termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied).
We will refer to the acts and/or omissions identified by section 161.001(b)(1) as "statutory predicate grounds."
In conducting a legal sufficiency challenge, we credit evidence that supports the verdict if a reasonable factfinder could have done so, and disregard contrary evidence unless a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). However, undisputed facts that do not support the verdict should not be disregarded in determining whether there is clear and convincing evidence. Id. at 113. Evidence that does more than raise surmise or suspicion is not sufficient unless that evidence is capable of producing a firm belief or conviction that the allegation is true. Id. If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that must be proven was true, then the evidence is legally insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
In a review of the factual sufficiency of the evidence, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We are to determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. We also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the dispute in favor of its finding. Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
Analysis
By two issues, A.E. challenges the legal and factual sufficiency of the evidence to support the termination of her parental rights to the children as to both establishment of the statutory predicate grounds and the best interest of the children.
Statutory Predicate Grounds
In her brief, A.E. challenges the sufficiency of the evidence supporting the trial court's findings of statutory predicate grounds under section 161.001(b)(1)(D),(E), and (O). As only one statutory predicate ground is required to support termination, In re A.V., 113 S.W.3d at 362; In re K.C.B., 280 S.W.3d at 894-95, we will limit our analysis of the sufficiency of the evidence in support of section 161.001(b)(1)(D) and (E).
A trial court may order termination of a person's parental rights if it finds, by clear and convincing evidence, that the parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the child's physical or emotional well-being. § 161.001(b)(1)(D). Likewise, a trial court may order termination of a person's parental rights if it finds, by clear and convincing evidence, that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. § 161.001(b)(1)(E). "Endanger" means to expose to loss or injury; to jeopardize. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It "means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Id. However, the endangering conduct or conditions need not be directed at the child and the child need not actually suffer injury. In re N.K., 399 S.W.3d 322, 331 (Tex. App.—Amarillo 2013, no pet.). "Conduct," as used in section 161.001(b)(1)(E), includes both the parent's actions and failures to act. In re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied).
While both subsections (D) and (E) focus on endangerment, they have different sources of endangerment and requirements of proof. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). On its face, subsection (E) permits termination upon proof that parental conduct causes endangerment. In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied). Subsection (D) requires proof that a parental act or omission caused the child to be placed or remain in an endangering environment. Id. Consequently, under both subsections, termination must rest on parental conduct. Id. A core difference, however, is that subsection (D) permits termination based on a single act or omission, while subsection (E) requires a "course of conduct." Id.
Under subsection (E), the endangering parental conduct need not be directed at the child, have caused actual injury to the child, or even constitute an actual and concrete threat of injury to the child. Id. at 368. Subsection (E) is satisfied by proof that a parental course of conduct endangered the child's physical or emotional well-being. Id.
In the present case, evidence was admitted that established that A.E. has a long history of drug abuse. Initially, A.E. abused prescription pain medication but, through failed drug tests and testimony from her mother, it appears that A.E. has more recently begun abusing methamphetamine and amphetamines. A.E.'s drug abuse was so severe that, if A.E.'s parents were not available to watch the children, N.C.G. would have to be responsible for feeding and caring for B.N.G. On two separate occasions, A.E. sought help through rehab programs. However, on both occasions, she voluntarily quit the programs before completing them. A.E. used drugs throughout the case as evidenced by four failed drug tests. In addition, there were multiple times when A.E. refused to take drug tests scheduled by the Department.
Ongoing drug abuse is conduct that subjects the children to a life of uncertainty and instability, which endangers their physical and emotional well-being. In re A.B., 125 S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet. denied); see In re K.A.S., No. 07-12-00234-CV, 2012 Tex. App. LEXIS 8725, at *16-17 (Tex. App.—Amarillo Oct. 18, 2012, no pet.) ("Drug use and its effect on a parent's life and ability to parent may establish an endangering course of conduct."). Drug abuse and its effect on the ability to parent and possible imprisonment can be part of an endangering course of conduct. In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
Evidence was admitted that A.E. was incarcerated during each hearing held in this case and, during the final hearing, she was in jail and would have to stay there for twelve days after that hearing.
A.E. also exposed the children to domestic violence before their removal. Evidence was admitted that A.E. was involved in two different relationships that exposed the children to domestic violence. In one instance, A.E. employed one of the children as an intermediary during a violent altercation with her boyfriend. Even after the children were removed, A.E. continued to act violently, including an incident where police were called to her residence because she was kicking out the windows of her own home following a fight with her boyfriend.
A parent's violent or abusive conduct can produce an environment that threatens a child's well-being. S.H.R. v. Dep't of Family & Protective Servs., 404 S.W.3d 612, 644 (Tex. App.—Houston [1st Dist.] 2012), aff'd by, In re S.M.R., 434 S.W.3d 576 (Tex. 2014) (Brown, J., dissenting); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). "Domestic violence, want of self[-]control, and propensity for violence may be considered as evidence of endangerment." In re J.I.T.P., 99 S.W.3d at 845.
A.E. also wholly failed to complete services provided by the Department. While she argues that the court did not order her to complete these services at a time when she could have done so, the record reflects that she took no effort to avail herself of these services as a means to improve her parenting. Further, as previously mentioned, A.E. went to drug rehab twice but failed to complete the program on either occasion and continued to abuse drugs afterward. As such, there is reason to question whether A.E. would have benefitted from services even if she had completed them.
Failure to complete a Department service plan may be considered as a factor in whether A.E. engaged in an endangering course of conduct. In re T.H., No. 07-07- 00391-CV, 2008 Tex. App. LEXIS 6107, at *21-22 (Tex. App.—Amarillo Aug. 12, 2008, no pet.) (mem. op.).
When a parent has had a history of drug abuse and continued to use illegal drugs after her children were removed, exposed her children to domestic violence, and refused to participate in her Department service plan, it has been determined to constitute legally and factually sufficient evidence that the parent has engaged in conduct that endangered the physical or emotional well-being of her children and knowingly placed or allowed the children to remain in conditions or surroundings that endangered the children's physical and emotional well-being. In re B.M.C., No. 01-16-00300-CV, 2016 Tex. App. LEXIS 10779, at *12-13 (Tex. App.—Houston [1st Dist.] Oct. 4, 2016, pet. denied) (mem. op.); In re M.R., 243 S.W.3d 807, 818-19 (Tex. App.—Fort Worth 2007, no pet.). After reviewing the entire record, we conclude that the evidence is both legally and factually sufficient to support the trial court's determination that A.E. committed the statutory predicate acts under subsections (D) and (E). We overrule A.E's challenge to these determinations.
Because only one statutory predicate ground is required to support termination when there is also a finding that termination is in the child's best interest, we need not address A.E.'s challenge to the sufficiency of the evidence to support the trial court's finding of a statutory predicate ground under subsection (O). See In re A.V., 113 S.W.3d at 362; In re K.C.B., 280 S.W.3d at 894-95.
Best Interest of the Children
A.E. also challenges the sufficiency of the evidence supporting the determination that termination of her parental rights to the children is in the children's best interest. The Department was required to prove by clear and convincing evidence that termination of A.E.'s parental rights was in the children's best interest. § 161.001(b)(2); In re K.M.L., 443 S.W.3d at 116. In conducting a review of the sufficiency of the evidence to support a trial court's best interest determination, we must determine whether the evidence is such that a factfinder could have formed a firm belief or conviction that termination is in the children's best interest. See In re K.M.L., 443 S.W.3d at 113 (legal sufficiency standard); In re J.F.C., 96 S.W.3d at 266 (factual sufficiency standard).
We start our review with a strong presumption that preserving the parent-child relationship is in the best interest of the children. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We also strive to achieve prompt and permanent placement of the children in a safe environment as this is also presumed to be in the children's best interest. See § 263.307(a) (West Supp. 2016). The Supreme Court has set out a non-exhaustive list of factors to consider when determining the best interest of a child. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the child; (6) the plans for the child by the individual or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.
Evidence that supports one or more statutory predicate grounds for termination may be probative evidence that termination is in the child's best interest. See In re C.H., 89 S.W.3d at 28; In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013). In addition to direct evidence, the best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). A child's need for permanence through the establishment of a "stable, permanent home" has been recognized as the paramount consideration in determining best interest. See § 263.307(a); In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
We begin our analysis of the children's best interest having just concluded that there was legally and factually sufficient evidence presented to support the trial court's findings under section 161.001(b)(1)(D) and (E). The evidence submitted to prove these statutory predicate grounds for termination is probative that termination is in the best interest of the children. In re C.H., 89 S.W.3d at 28.
There was no evidence admitted regarding the children's desire to return to A.E. However, the evidence established that the children spent significant time in the care of their maternal grandparents, the children's current placement. While we can presume that the children are bonded to their mother, we must consider the overall circumstances of the children.
Although a child's love of his natural parents is a very important consideration in determining the best interests of the child, it cannot override or outweigh the overwhelming and undisputed evidence showing that the parents placed or allowed the child to remain in conditions, and engaged in conduct or placed the child with persons who engaged in conduct, which endangers the physical and emotional well-being of the child. The child's love of his parents cannot compensate for the lack of an opportunity to grow up in a normal and safe way equipped to live a normal, productive, and satisfying life.In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.).
The trial court's determinations that A.E. knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, and engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children supports the proposition that termination is in the children's best interest under the second and third Holley factors. In re C.H., 89 S.W.3d at 28; In re E.C.R., 402 S.W.3d at 249. We also consider A.E.'s continued drug use during the pendency of the case as further proof that she endangered the children. See In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App. LEXIS 234, at *11-12 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.) (parent's continued drug use demonstrates an "inability to provide a stable environment for [the child] and an inability to provide for his emotional and physical needs"). Intentional criminal activity which exposes the parent to incarceration, such as A.E.'s continued drug use and her ongoing pattern of frequent incarceration, is relevant evidence that tends to establish a course of conduct that endangers the emotional and physical well-being of the children. In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) (per curiam); see In re A.A.M., 464 S.W.3d at 426. For these reasons, the second and third Holley factors strongly support termination.
A.E. contends that the Department failed to present evidence of how her continued abuse of illegal drugs endangered her children's emotional and physical well-being. The risk of incarceration, impaired judgment, and willingness to essentially abandon her children with their maternal grandparents for days at a time provide sufficient evidence of how A.E.'s drug abuse endangers the children's well-being.
The record reflects that A.E. did not complete any of the services provided for in the service plan developed by the Department. While we acknowledge that the trial court may not have ordered the services in a timely manner, A.E.'s refusal to participate in the services reflects that she does not desire to utilize the programs available to assist her in promoting the best interest of the children. Further, the record reflects that A.E. has gone to in-patient drug rehab on two separate occasions but she failed to complete the program on either occasion and she continued to abuse drugs afterward. The parental abilities exhibited by A.E. led to the removal of the children and there was no evidence presented that would reflect that A.E. had, in any way, improved her parental abilities. Consequently, the fourth and fifth Holley factors strongly support termination.
The Department's plan for the children is termination of A.E.'s parental rights to enable the children to be adopted by their maternal grandparents. While we acknowledge that the Department may not be able to immediately pursue their plans of a relative adoption by the grandparents due to the severance and continuation of the fathers' cases, we are still left with plans that, if they can be implemented, will provide the children with stability and nurture. There was evidence admitted that the children were doing well since being placed with the maternal grandparents. When the Department's plans for the children are compared to the lack of stability and nurture A.E. is capable of providing, the sixth and seventh Holley factors favor termination.
We believe it is noteworthy that A.E.'s entire argument relating to the sixth and seventh Holley factors focuses on the extent to which A.E. relied on her parents' support in raising the children. In fact, she seems to be making the point that her parents have always provided for the children.
A.E. has committed acts that indicate that her existing relationship with the children is not proper. She abused drugs throughout the children's lives and she has continued to abuse illegal drugs throughout the pendency of this case. She exposed the children to domestic violence on multiple occasions, even using one of the children as an intermediary during one such altercation. She has been incarcerated on multiple occasions throughout the pendency of this case. A.E. failed to even attempt to complete any of the services on her service plan, and has twice gone to drug rehab without success. Based on all of this, the eighth Holley factor favors termination.
Finally, A.E.'s excuses are that she was not required to complete services because the trial court did not timely order her to complete these services. She does not provide an excuse for why she did not choose to complete at least some of these services in the best interest of her children.
When we consider all of the Holley factors in light of the entire record, we conclude that a reasonable factfinder could have formed a firm belief or conviction that termination of A.E.'s parental rights to the children is in the children's best interest. See In re K.M.L., 443 S.W.3d at 113; In re J.F.C., 96 S.W.3d at 266.
Conclusion
Having determined that the evidence is both legally and factually sufficient to support the trial court's decision to terminate A.E.'s parental rights to the children, we affirm the judgment of the trial court.
Judy C. Parker
Justice